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Supreme Court Wrongly Upholds a Broadly Worded Speech Ban

Thomas A. Berry

Today in United States v. Hansen, the Supreme Court upheld the federal criminal prohibition on encouraging or inducing violations of immigration law. To do so, the Court adopted a narrow interpretation of the statutory language at issue. The Court held that, in the context of this particular statute, the words “encourages” and “induces” are terms of art referring to the criminal concepts of facilitation and solicitation. The Court thus held that the law criminalizes “only the intentional solicitation or facilitation of certain unlawful acts.” On that basis, the Court declined to strike down the law as facially overbroad under the First Amendment.

The Court’s opinion, written by Justice Amy Coney Barrett for seven justices, conceded that “encourage” and “induce” both have very broad dictionary definitions. In the abstract, these words can simply mean to “inspire with courage, spirit, or hope” and to “move by persuasion or influence.” Both the Ninth Circuit below and the defendant in this case argued that the words in the statute had these broad meanings. That is why the defendant argued that the law could criminalize even an “op‐​ed or public speech criticizing the immigration system and supporting the rights of long‐​term undocumented noncitizens to remain.” Cato filed an amicus brief supporting the defendant providing similar examples, including a viral video arguing that “even if a noncitizen is violating the law, it’s better to stay here and prosper in America.”

The Court conceded that if the statute potentially criminalized op‐​eds or speeches, “its applications to protected speech might swamp its lawful applications, rendering it vulnerable to an overbreadth challenge.” But the Court held that the statutory words “encourages or induces” should be interpreted not based on their dictionary definitions but rather based on their “specialized, criminal‐​law sense.” And under that interpretation, the Court held that the statute “reaches no further than the purposeful solicitation and facilitation of specific acts known to violate federal law.”

The Court’s interpretation rested largely on statutory context, reasoning that “when a criminal‐​law term is used in a criminal‐​law statute, that—in and of itself—is a good clue that it takes its criminal‐​law meaning.” And to resolve any remaining ambiguity, the Court also invoked the doctrine of “constitutional avoidance,” which urges courts to adopt an interpretation of a statute that would make the statute constitutionally sound. As the Court put it, “When legislation and the Constitution brush up against each other, our task is to seek harmony, not to manufacture conflict.”

The majority opinion is written with an unmistakably skeptical eye toward the First Amendment overbreadth doctrine. The Court sets the tone by noting at the outset that “An overbreadth challenge is unusual.” The Court further tips its hand by emphasizing that “To justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful.” In a concurring opinion, Justice Clarence Thomas goes even further, arguing that the facial overbreadth doctrine has carried the judiciary “far afield” from its “constitutional role.”

The concern raised by both the majority and concurring opinions is that a defendant may challenge a statute as overbroad even though the statute would be constitutional as applied to the conduct of that particular defendant. Justice Thomas objects that under overbreadth doctrine, courts can “declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner.”

But this concern is convincingly rebutted in a dissenting opinion by Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor. As Justice Jackson noted, “it makes little sense for the number of unconstitutional prosecutions to be the litmus test for whether speech is being chilled by a facially overbroad statute. The number of people who have not exercised their right to speak out of fear of prosecution is, quite frankly, unknowable.”

Justice Thomas thus takes too narrow a view of when a law has been “applied” in an unconstitutional manner. A law affects conduct when someone self‐​censors to avoid risk, which means an overbroad law has in fact been “applied” and has in fact limited freedom of speech even in the absence of a prosecution. Facial overbreadth challenges are often the only means of attacking laws that have real effects on freedom of speech.

Justice Jackson’s dissent also explains how the overbreadth doctrine plays a crucial role in encouraging Congress to write criminal statutes with precision. For decades, Americans have rationally erred on the side of caution when speaking on immigration issues due to this statute, not knowing exactly where the line of criminality falls. Because the law remains on the books, questions about whether particular future applications might be unconstitutional are left “up in the air.” Although an as‐​applied challenge to a particular prosecution can still be raised in the future as part of a criminal defense, the risk of jail time if a defendant guesses wrong on the constitutional question is not a risk that anyone can reasonably be expected to take.

Indeed, one key question about the statute is explicitly left unanswered by the Court’s opinion: whether it is constitutional to criminally punish speech that facilitates or solicits a mere civil (as opposed to criminal) violation. The Supreme Court has never answered the question whether speech can be criminally punished when the conduct facilitated by that speech is not itself a crime. And many of the immigration violations covered by the law are indeed civil, rather than criminal, violations. Yet the only way to resolve this question, after the Court’s decision, is to raise it as a defense in a criminal prosecution.

Finally, Justice Jackson’s dissent notes another key problem with the Court’s decision: the government has, on many occasions, adopted a much broader reading of this statute when doing so was in the government’s interest. Indeed, at an earlier stage of this very case, the government fought against an interpretation of the law requiring that intent be proved for conviction. As Justice Jackson writes: “In its role as prosecutor, the Government often stakes out a maximalist position, only later to concede limits when the statute upon which it relies might be struck down entirely and the Government finds itself on its back foot.”

Unfortunately, that gambit paid off in this case. The government received the benefit of an arguably broad law for decades, but now a narrowing construction has saved that same law from constitutional challenge. When courts allow the government to shift its interpretation of statutes to its own benefit, the liberty of the people is often on the losing end at every stage of the process.

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